While I’ve previously argued that the Marchman Act is the “best kept secret” in the midst of the opioid crisis, it’s the method of initiation that’s the topic of this blog post. The Marchman Act is a bifurcated process (there are two stages that must be completed for an individual to ultimately be ordered into treatment). The first stage is one of detox, stabilization and assessment, and comes in three flavors: 1) Petition, 2) Emergency, and 3) Protective Custody. Emergency Admission and Protective Custody do not require the filing of a petition and do not involve the judicial system. There is no review for legal sufficiency, unless a Petition for a Writ of Habeas Corpus is filed.
The process of detox, stabilization and assessment may be initiated by the filing of a petition with the Court. The petition, in the case of an adult, can be filed by the respondent’s spouse or legal guardian, any relative, a service provider, or an adult who has direct personal knowledge of the respondent’s substance abuse impairment and his or her prior course of assessment and treatment. In the case of minor, it may be filed by a parent, legal guardian, or service provider.
The petition, filed by either an attorney (the better way to proceed) or by a pro sepetitioner (not the better way to proceed), is reviewed by the Court for legal sufficiency. If legally sufficient, the Court can then issue a pick up order, essentially ordering law enforcement to seize the Respondent and take him or her to a designated facility for detox, stabilization and assessment.
Emergency admission, which does not involve the filing of a petition, can be initiated by any “professional” who issues a Professionals Certificate, the person’s spouse or legal guardian, any relative of the person, or any other responsible adult who has personal knowledge of the person’s substance abuse impairment. In the case of a minor, it’s the minor’s parent, legal guardian, or legal custodian.
“Qualified professional” includes a physician or a physician’s assistant, a clinical psychologist, clinical social worker, mental health counselor, an advanced registered nurse practitioner, or a person who is certified through a department-recognized certification process for substance abuse treatment services and who holds, at a minimum, a bachelor’s degree.
The Certificate of Emergency Admission must be specific to substance abuse impairment and be accompanied with an application for emergency admission. The professional’s certificate must include the name of the person to be admitted, the relationship between the person and the professional executing the certificate, the relationship between the applicant and the professional, any relationship between the professional and the licensed service provider, a statement that the person has been examined and assessed within the preceding 5 days after the application date, and factual allegations with respect to the need for emergency admission. The professional’s certificate is valid for 7 days after issuance and authorizes a receiving facility to hold an adult or minor for 72 hours to conduct the assessment.
Protective custody, like the Emergency process, does not involve the filing of a petition. It may be initiated by a law enforcement officer when a minor or an adult, who appears to meet the involuntary admission criteria, and: (1) the individual’s conduct is brought to the attention of law enforcement, or (2) the individual’s conduct occurs in a public place. An individual brought to a facility for detox, stabilization and assessment pursuant to the Emergency Admission provision, and who refuses to comply with the non-professional’s orders could, arguably, also be admitted pursuant to the Protective Custody provision. Unless there is an objection, in the case of an adult, a law enforcement officer must notify the nearest relative. In the case of a minor, there can be no objection.
An individual in circumstances which justify protective custody, who fails or refuses to consent to assistance by a law enforcement officer may, after being given due consideration to their expressed wishes, be taken to a hospital, or licensed detoxification or addictions receiving facility, against their will with the use of reasonable force. Persons taken into protective custody must be assessed by the attending physician within the 72-hour period and without unnecessary delay, to determine the need for further services. A minor may be held for up to five (5) days, inclusive of the initial seventy-two (72) hour period, if it is determined by an attending physician that further services are necessary.
Once an individual is admitted for detox, stabilization and assessment by any method (petition, emergency or protective custody), in order for treatment to thereafter be mandated, a Petition Seeking Involuntary Services must be filed and reviewed by the Court. If legally sufficient, the Court will thereafter order a hearing which can become adversarial. While the Court will likely follow the recommendations of the assessment, the Respondent has the right to contest the allegations made in the petition and to have counsel present, or have the Court appoint counsel in the appropriate situation, if they do not believe they are a candidate for treatment.
This process is really no different than the one authorized by the Baker Act. It’s not unusual for law enforcement to take an individual to a mental health facility or a therapist to call law enforcement to initiate the Baker Act process and request the patient be taken to a facility. However, the Marchman Act is not being used in the manner I’ve just described, despite the fact that a mental health disorder usually accompanies a substance abuse disorder, and vice versa.
It boils down to the simple fact that professionals and/or law enforcement officers do not seem to know they have this authority, or if they do, do not know how to initiate the process or where the individual needs to be taken. When I hear stories of individuals being admitted to an emergency room multiple times in a single night for an overdose, I cringe. What a waste of life and resources. Additionally, after an individual has been submitted for detox, stabilization and assessment, it is incumbent on the submitting agent to notify someone who could potentially petition the Court for involuntary services (the second stage in the Marchman Act process), that they have the legal right to do so and how to go about facilitating that process.
The 800lb guerrilla in the room continues to be funding, or the lack thereof. If we do not have sufficient facilities for detox, stabilization and assessment, then the Marchman Act remains a wolf without teeth, all form and no substance. I hope and pray that the funds, now available as a result of the Governor declaring a State of Emergency, will be put to good use (see my last newsletter where I address that issue http://drugandalcoholattorneys.com/the-opioid-crisis-a-potential-solution/).
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